Obamacare contains strange racial preferences and discrimination

A story in the Daily Caller highlights the discrimination and racial preferences contained in Obamacare. It’s a subject that has received remarkably little attention, even though the U.S. Commission on Civil Rights concluded back in 2009 that the healthcare bill was racially discriminatory, in two ways. First, the law is filled with “sections that factor in race when awarding billions in contracts, scholarships and grants” and give “preferential treatment to minority students for scholarships.” Second, in other ways, it may actually discriminate against minority patients.

As an African-American member of the Commission noted, it “creates separate and unequal operating standards for long-term care facilities that serve racial and ethnic minorities.” By granting HHS “the discretion to waive substantial penalties . . . for failing to report elder abuse and other crimes committed against residents of long-term care facilities that serve racial and ethnic minorities,” it “could increase the probability that residents of such facilities won’t receive the same level of protection as residents of nursing homes that serve non-minority populations.”

As the Daily Caller notes, some of these racial preferences reflect a weird theory promoted by certain Obamacare architects: that the healthcare system should promote “racial concordance,” a fancy word for “pairing patients and doctors of the same race, a goal toward which the law channels taxpayer dollars.” The idea is that patients do better with doctors of the same race. But this motivation for using race conflicts with Supreme Court rulings, which reject such racial pairing as a reason for using race.

While the Supreme Court has allowed the government to use race in hiring or admissions for certain other reasons (to remedy the effects of the government’s own past discrimination, and, in the college setting, to promote diversity in admissions), it has rejected using race for reasons like this. In its decision in Wygant v. Jackson Board of Education (1986), the Supreme Court rejected using race to give minority students teachers of their own race. It observed that pairing people by race perpetuates, rather than dismantles, segregation: “Carried to its logical extreme, the idea that black students are better off with black teachers could lead to the very system the Court rejected in Brown v. Board of Education,” the Supreme Court noted. (Indeed, defenders of segregation had once defended having all-black and all-white schools precisely in order to provide role models for minority students.) Earlier, in its Bakke decision, the Supreme Court expressed skepticism about the value of providing minority physicians for minority patients, refusing to allow a state university to give minority applicants a racial preference in admissions to medical school in order to give minority patients access to physicians of the same race, and ruling that the university had “not carried its burden of demonstrating that it must prefer members of particular ethnic groups over all other individuals in order to promote better health care delivery to deprived citizens.”

The Daily Caller argues that “Obamacare seeks to segregate patients, doctors by race.” While this may be painting with too broad a brush, Obamacare does not seem to rely on the justifications for using race that have been blessed by the Supreme Court, like remedying the present effects of the federal government’s own past discrimination against minorities. This is fatal, because an improper motivation for using race taints an otherwise valid affirmative-action program, under Supreme Court decisions like Shaw v. Hunt. Even if the government had discriminated against minorities in the past, and the effects of that discrimination lingered today, that could only justify using race in minorities’ favor if remedying their effects was Obamacare’s “actual purpose” for using race, and its use of race cannot be justified if such a remedial rationale “did not actually precipitate the use of race.” (See Shaw v. Hunt, 517 U.S. 899, 908 n.4, 910 (1996)).

Regardless of Obamacare’s motive for using race, its racial preferences and discrimination are unconstitutional under existing precedent. Any federal discrimination against minorities in healthcare is either too isolated, or too far in the past, to support the use of racial preferences in the present. Even a history of discrimination against minorities by the government cannot justify the use of race now unless the discrimination is recent. (See, e.g., Brunet v. Columbus, 1 F.3d 390 (6th Cir. 1993) (discrimination that occurred 17 years ago does not support affirmative action today); Hammon v. Barry, 813 F.2d 412 (D.C. Cir. 1987).)

Moreover, to justify racial preferences, the discrimination against minorities must have been “intentional,” not merely “disparate impact” (“disparate impact” is a race-neutral practice that disproportionately weeds out minority applicants, like a standardized test that more blacks flunk than whites). See People Who Care v. Rockford Board of Education, 111 F.3d 538, 534 (7th Cir. 1997); Builders Association of Chicago v. County of Cook, 256 F.3d 642, 644 (7th Cir. 2001).

In 2009, the U.S. Commission on Civil Rights criticized the racial preferences in the healthcare bill, saying that they were likely unconstitutional under the Supreme Court’s 2000 Adarand decision, which subjected race-based affirmative action to “strict scrutiny” and barred federal racial preferences absent evidence that they are needed to remedy intentional past discrimination by the government. In cases like Rothe Development Corp. v. Department of Defense and the Western States Paving case, the courts have sometimes struck down federal affirmative-action plans sponsored by liberal lawmakers, citing the Supreme Court’s Adarand decision. ObamaCare goes even further in mandating the use of race than past affirmative action plans.

The racial preferences backed by the Obama administration are not limited to Obamacare or healthcare. Earlier, we wrote about unconstitutional requirements that banks and financial institutions use race in hiring and contracting, requirements contained in a recent proposed regulation to implement the 2010 Dodd-Frank Act.

Hans Bader practices law in Washington, D.C. After studying economics and history at the University of Virginia and law at Harvard, he practiced civil-rights, international-trade, and constitutional law. Hans also writes for CNS News and has appeared on C-SPAN’s “Washington Journal.”

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